SUCCESSION

Disinheritance vs. Preterition (1993)

Maria, to spite her husband Jorge, whom she suspected was having an affair with another woman, executed a will,
unknown to him, bequeathing all the properties she inherited from her parents, to her sister Miguela. Upon her death,
the will was presented for probate. Jorge opposed probate of the will on the ground that the will was executed by his
wife without his knowledge, much less consent, and that it deprived him of his legitime. After all, he had given her no
cause for disinheritance, added Jorge in his opposition.
Maria's will. If you were the Judge?
SUGGESTED ANSWER:
As Judge, I shall rule as follows: Jorge's opposition should be sustained in part and denied in part. Jorge's omission
as spouse of Maria is not preterition of a compulsory heir in the direct line. Hence, Art. 854 of the Civil Code does not
apply, and the institution of Miguela as heir is valid, but only to the extent of the free portion of one-half. Jorge is still
entitled to one-half of the estate as his legitime. (Art. 1001, Civil Code)
ALTERNATIVE ANSWERS:
a) As Judge, I shall rule as follows: Jorge's opposition should be sustained in part and denied in part. This is a case of
ineffective disinheritance under Art, 918 of the Civil Code, because the omission of the compulsory heir Jorge by Maria
was intentional. Consequently, the institution of Miguela as heir is void only insofar as the legitime of Jorge is prejudiced.
Accordingly, Jorge is entitled to his legitime of one-half of the estate, and Miguela gets the other half.
b) As Judge, I shall rule as follows: Jorge's opposition should be sustained. This is a case of preterition under Article
854 Civil Code, the result of the omission of Jorge as compulsory heir having the same right equivalent to a legitimate
child "in the direct line" is that total intestacy will arise, and Jorge will inherit the entire estate.
c) As Judge, I shall rule as follows: the opposition should be denied since it is predicated upon causes not recognized
by law as grounds for disallowance of a wll, to wit:
1 that the will was made without his knowledge;
2 that the will was made without his consent; and
3 that it has the effect of depriving him of his legitime, which is a ground that goes into the intrinsic validity of
the will and need not be resolved during the probate proceedings. However, the opposition may be entertained for,
the purpose of securing to the husband his right to the legitime on the theory that the will constitutes an ineffective
disinheritance under Art. 918 of the Civil Code,

d) As Judge, I shall rule as follows: Jorge is entitled to receive his legitime from the estate of his wife. He was not
disinherited in the will even assuming that he gave ground for disinheritance, hence, he is still entitled to his legitime.
Jorge, however, cannot receive anything from the free portion. He cannot claim preterition as he is not a compulsory
heir in the direct line. There being no preterition, the institution of the sister was valid and the only right of Jorge is to
claim his legitime.
Disinheritance; Ineffective (1999)
Mr. Palma, widower, has three daughters D, D-l and D-2. He executes a Will disinheriting D because she married a
man he did not like, and instituting daughters D-1 and D-2 as his heirs to his entire estate of P 1,000,000.00, Upon Mr,
Palma's death, how should his estate be divided? Explain. (5%)
SUGGESTED ANSWER:
This is a case of ineffective disinheritance because marrying
1028 for being in consideration of her adulterous relation
a man that the father did not approve of is not a ground for disinheriting D. Therefore, the institution of D-l and D-2 shall
be annulled insofar as it prejudices the legitime of D, and the institution of D-l and D-2 shall only apply on the free
portion in the amount of P500,000.00. Therefore, D, D-l and D-2 will get their legitimes of P500.000.00 divided into
three equal parts and D-l and D-2 will get a reduced testamentary disposition of P250,000.00 each. Hence, the shares
will be:
D P166,666.66
D-l P166,666.66 + P250.000.00
D-2 P166,666.66 + P250,000.00
Disinheritance; Ineffective; Preterition (2000)
In his last will and testament, Lamberto 1) disinherits his daughter Wilma because "she is disrespectful towards me
and raises her voice talking to me", 2) omits entirely his spouse Elvira, 3) leaves a legacy of P100,000.00 to his mistress
Rosa and P50,000.00 to his driver Ernie and 4) institutes his son Baldo as his sole heir. How will you distribute his
estate of P1,000,000.00? (5%)
SUGGESTED ANSWER:
The disinheritance of Wilma was ineffective because the ground relied upon by the testator does not constitute
maltreatment under Article 919(6) of the New Civil Code. Hence, the testamentary provisions in the will shall be
annulled but only to the extent that her legitime was impaired.
The total omission of Elvira does not constitute preterition because she is not a compulsory heir in the direct line. Only
compulsory heirs in the direct line may be the subject of preterition. Not having been preterited, she will be entitled only
to her legitime.
The legacy in favor of Rosa is void under Article 1028 for being in consideration of her adulterous relation with the
testator. She is, therefore, disqualified to receive the legacy of 100,000 pesos. The legacy of 50,000 pesos in favor of
Ernie is not inofficious not having exceeded the free portion. Hence, he shall be entitled to receive it.
The institution of Baldo, which applies only to the free portion, shall be respected. In sum, the estate of Lamberto will
be distributed as follows:
Baldo-----------------450,000 Wilma---------------250,000 Elvira-----------------250,000 Ernie-----------------50,000
1,000,000
ALTERNATIVE ANSWER:
The disinheritance of Wilma was effective because disrespect of, and raising of voice to, her father constitute
maltreatment under Article 919(6) of the New Civil Code. She is, therefore, not entitled to inherit anything. Her
inheritance will go to the other legal heirs. The total omission of Elvira is not preterition because she is not a compulsory
heir in the direct line. She will receive only her legitime. The legacy in favor of Rosa is void under Article with the
testator. She is, therefore, disqualified to receive the legacy. Ernie will receive the legacy in his favor because it is not
inofficious. The institution of Baldo, which applies only to the free portion, will be respected. In sum, the estate of
Lamberto shall be distributed as follows:
Heir Legitime Legacy Institution TOTAL
Baldo 500,000 200.000 700,000 Elvira 250,000 250,000 Ernie 50,000 50,000 TOTAL 750,000 50,000 200,000
1,000,000
ANOTHER ALTERNATIVE ANSWER:
Same answer as the first Alternative Answer except as to distribution. Justice Jurado solved this problem differently.
In his opinion, the legitime of the heir who was disinherited is distributed among the other compulsory heirs in proportion
to their respective legitimes, while his share in the intestate portion. If any, is distributed among the other legal heirs by
accretion under Article 1018 of the NCC in proportion to their respective intestate shares. In sum the distribution shall
be as follows:
Legitime (1997)
"X", the decedent, was survived by W (his widow). A (his son), B (a granddaughter, being the daughter of A) and C
and D (the two acknowledged illegitimate children of the decedent). "X" died this year (1997) leaving a net estate of
P180,000.00. All were willing to succeed, except A who repudiated the inheritance from his father, and they seek your
legal advice on how much each can expect to receive as their respective shares in the distribution of the estate. Give
your answer.
SUGGESTED ANSWER:
The heirs are B, W, C and D. A inherits nothing because of his renunciation. B inherits a legitime of P90.000.00 as the
nearest and only legitimate descendant, inheriting in his own right not by representation because of A's renunciation.
W gets a legitime equivalent to one-half (1 / 2) that of B amounting to P45.000. C and D each gets a legitime equivalent
to one-half (1/2) that of B amounting to P45.000.00 each. But since the total exceeds the entire estate, their legitimes
would have to be reduced corresponding to P22.500.00 each (Art. 895. CC). The total of all of these amounts to
P180.000.00.
ALTERNATIVE ANSWER:
INTESTATE SUCCESSION ESTATE: P180,000.00
W- (widow gets 1/2 share) P90.000.00 (Art. 998) A- (son who repudiated his inheritance) None Art. 977) B -
(Granddaughter) None C - (Acknowledged illegitimate child) P45.000.00 (Art.998) D - (Acknowledged illegitimate
child) P45,000.00 (Art. 998) The acknowledged illegitimate child gets 1/2 of the share of each legitimate child.
Legitime; Compulsory Heirs (2003)
Luis was survived by two legitimate children, two illegitimate children, his parents, and two brothers. He left an estate
of P1 million. Who are the compulsory heirs of Luis, how much is the legitime of each, and how much is the free portion
of his estate, if any?
SUGGESTED ANSWER:
The compulsory heirs are the two legitimate children and the two illegitimate children. The parents are excluded by the
legitimate children, while the brothers are not compulsory heirs at all. Their respective legitimate are: a) The legitime
of the two (2) legitimate children is one
half (1/2) of the estate (P500,000.00) to be divided
between them equally, or P250,000.00 each. b) The legitimate of each illegitimate child is one-half
(1/2) the legitime of each legitimate child or
P125,000.00.
c) Since the total legitime of the compulsory heirs is
legitime of the legitimate children and it follows that the
P750,000.00, the balance of P250,000.00 is the free portion.
Legitime; Compulsory Heirs vs. Secondary Compulsory Heirs (2005)
Emil, the testator, has three legitimate children, Tom, Henry and Warlito; a wife named Adette; parents named Pepe
and Pilar; an illegitimate child, Ramon; brother, Mark; and a sister, Nanette. Since his wife Adette is well-off, he wants
to leave to his illegitimate child as much of his estate as he can legally do. His estate has an aggregate net amount of
Pl,200,000.00, and all the above-named relatives are still living. Emil now comes to you for advice in making a will.
How will you distribute his estate according to his wishes without violating the law on testamentary succession? (5%)
SUGGESTED ANSWER:
P600,000.00 — legitime to be divided equally between Tom, Henry and Warlito as the legitimate children. Each will be
entitled to P200,000.00. (Art. 888, Civil Code) P100,000.00 -- share of Ramon the illegitimate child. Equivalent to 1/2
of the share of each legitimate child. (Art. 176, Family Code) P200,000.00 — Adette the wife. Her share is equivalent
to the share of one legitimate child. (Art. 892, par. 2, Civil Code)
Pepe and Pilar, the parents are only secondary compulsory heirs and they cannot inherit if the primary compulsory
heirs (legitimate children) are alive. (Art. 887, par. 2, Civil Code)
Brother Mark and sister Nanette are not compulsory heirs since they are not included in the enumeration under Article
887 of the Civil Code.
The remaining balance of P300,000.00 is the free portion which can be given to the illegitimate child Ramon as an
instituted heir. (Art. 914, Civil Code) If so given by the decedent, Ramon would receive a total of P400,000.00.
Preterition (2001)
Because her eldest son Juan had been pestering her for capital to start a business, Josefa gave him P100,000. Five
years later, Josefa died, leaving a last will and testament in which she instituted only her four younger children as her
sole heirs. At the time of her death, her only properly left was P900,000.00 in a bank. Juan opposed the will on the
ground of preterition. How should Josefa's estate be divided among her heirs? State briefly the reason(s) for your
answer. (5%)
SUGGESTED ANSWER:
There was no preterition of the oldest son because the testatrix donated 100,000 pesos to him. This donation is
considered an advance on the son's inheritance. There being no preterition, the institutions in the will shall be respected
but the legitime of the oldest son has to be completed if he received less.
After collating the donation of P100.000 to the remaining property of P900,000, the estate of the testatrix is P1,000,000.
Of this amount, one-half or P500,000, is the
legitime of one legitimate child is P100,000. The legitime, therefore, of the oldest son is P100,000. However, since the
donation given him was P100,000, he has already received in full his legitime and he will not receive anything anymore
from the decedent. The remaining P900,000, therefore, shall go to the four younger children by institution in the will, to
be divided equally among them. Each will receive P225,000.
ALTERNATIVE ANSWER:
Assuming that the donation is valid as to form and substance, Juan cannot invoke preterition because he actually had
received a donation inter vivos from the testatrix (III Tolentino 188,1992 ed.). He would only have a right to a completion
of his legitime under Art. 906 of the Civil Code. The estate should be divided equally among the five children who will
each receive P225,000.00 because the total hereditary estate, after collating the donation to Juan (Art. 1061, CC),
would be P1 million. In the actual distribution of the net estate, Juan gets nothing while his siblings will get P225,000.00
each.
Preterition; Compulsory Heir (1999)

(a) Mr, Cruz, widower, has three legitimate children, A, B and C. He executed a Will instituting as his heirs to his
estate of One Million (P1,000,000.00) Pesos his two children A and B, and his friend F. Upon his death, how should
Mr. Cruz's estate be divided? Explain. (3%)

(b) In the preceding question, suppose Mr. Cruz instituted his two children A and B as his heirs in his Will, but gave a
legacy of P 100,000.00 to his friend F. How should the estate of Mr, Cruz be divided upon his death? Explain, (2%)

SUGGESTED ANSWER:

(a) Assuming that the institution of A, B and F were to the entire estate, there was preterition of C since C is a
compulsory heir in the direct line. The preterition will result in the total annulment of the institution of heirs. Therefore,
the institution of A, B and F will be set aside and Mr. Cuz's estate will be divided, as in intestacy, equally among A, B
and C as follows: A - P333,333.33; B - P333.333.33; and C ¬P333,333.33.

(b) On the same assumption as letter (a), there was preterition of C. Therefore, the institution of A and B is annulled
but the legacy of P100.000.00 to F shall be respected for not being inofficious. Therefore, the remainder of P900.000.00
will be divided equally among A, B and C.
Succession; Death; Presumptive Legitime (1991)
a) For purposes of succession, when is death deemed to occur or take place?
b) May succession be conferred by contracts or acts inter vivos? Illustrate.
c) Is there any law which allows the delivery to compulsory heirs of their presumptive legitimes during the lifetime of
their parents? If so, in what instances?
SUGGESTED ANSWER:
A. Death as a fact is deemed to occur when it actually takes place. Death is presumed to take place in the
circumstances under Arts. 390-391 of the Civil Code. The time of death is presumed to be at the expiration of the
10¬year period as prescribed by Article 390 and at the moment of disappearance under Article 391.
B. Under Art. 84 of the Family Code amending Art 130 of the Civil Code, contractual succession is no longer possible
since the law now requires that donations of future property be governed by the provisions on the testamentary
succession and formalities of wills.
ALTERNATIVE ANSWER:
B. In the case of Coronado vs.CA(l91 SCRA81), it was ruled that no property passes under a will without its being
probated, but may under Article 1058 of the Civil Code of 1898, be sustained as a partition by an act inter vivos
[Many-Oy vs. CA 144SCRA33).
And in the case of Chavez vs, IAC 1191 SCRA211), it was ruled that while the law prohibits contracts upon future
inheritance, the partition by the parent, as provided in Art. 1080 is a case expressly authorized by law. A person has
two options in making a partition of his estate: either by an act inter vivos or by will. If the partition is by will, it is
imperative that such partition must be executed in accordance with the provisions of the law on wills; if by an act inter
vivos, such partition may even be oral or written, and need not be in the form of a will, provided the legitime is not
prejudiced.
"Where several sisters execute deeds of sale over their 1 /6 undivided share of the paraphernal property of their only
giving her authority thereto but even signing said deeds, there is a valid partition inter vivos between the mother and
her children which cannot be revoked by the mother. Said deeds of sale are not contracts entered into with respect to
future inheritance.
"It would be unjust for the mother to revoke the sales to a son and to execute a simulated sale in favor of a daughter
who already benefited by the partition."
SUGGESTED ANSWER:
C. Yes, under Arts. 51 and 52 of the New Family Code. In case of legal separation, annulment of marriage, declaration
of nullity of marriage and the automatic termination of a subsequent marriage by the reappearance of the absent
spouse, the common or community property of the spouses shall be dissolved and liquidated.
Art, 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the
final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual
agreement, judicially approved, had already provided for such matters.
The children of their guardian, or the trustee of their property, may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights
of the children accruing upon the death of either or both of the parents; but the value of the properties already received
under the decree of annulment or absolute nullity shall be considered as advances on their legitime.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties
of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not affect third persons.
Wills; Codicil; Institution of Heirs; Substitution of Heirs (2002)
By virtue of a Codicil appended to his will, Theodore devised to Divino a tract of sugar land, with the obligation on the
part of Divino or his heirs to deliver to Betina a specified volume of sugar per harvest during Betina’s lifetime. It is also
stated in the Codicil that in the event the obligation is not fulfilled, Betina should immediately seize the property from
Divino or latter’s heirs and turn it over to Theodore’s compulsory heirs. Divino failed to fulfill the obligation under the
Codicil. Betina brings suit against Divino for the reversion of the tract of land. a) Distinguish between modal institution
and substation
of heirs. (3%) b) Distinguish between simple and fideicommissary
substitution of heirs. (2%) c) Does Betina have a cause of action against Divino?
Explain (5%)
SUGGESTED ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
A. A MODAL INSTITUTION is the institution of
an heir made for a certain purpose or cause (Arts. 871 and 882, NCC). SUBSTITUTION is the appointment of another
heir so that he may enter into the inheritance in default of the heir originality instituted. (Art. 857, NCC).
B. In a SIMPLE SUBSTITUTION of heirs, the testator designates one or more persons to substitute the heirs instituted
in case such heir or heirs should die before him, or should not wish or should be incapacitated to accept the inheritance.
In a FIDEICOMMISSARY SUBSTITUTION, the testator institutes a first heir and charges him to preserve and transmit
the whole or part of the inheritance to a second heir. In a simple substitution, only one heir inherits. In a fideicommissary
substitution, both the first and second heirs inherit. (Art. 859 and 869, NCC)
C. Betina has a cause of action against Divino. This is a case of a testamentary disposition subject to a mode and the
will itself provides for the consequence if the mode is not complied with. To enforce the mode, the will itself gives Betina
the right to compel the return of the property to the heirs of Theodore. (Rabadilla v. Conscoluella, 334 SCRA 522 [2000]
GR 113725, 29 June 2000).
Wills; Formalities (1990)

(1) If a will is executed by a testator who is a Filipino citizen, what law will govern if the will is executed in the Philippines?
What law will govern if the will is executed in another country? Explain your answers.

(2) If a will is executed by a foreigner, for instance, a Japanese, residing in the Philippines, what law will govern if the
will is executed in the Philippines? And what law will govern if the will is executed in Japan, or some other country, for
instance, the U.S.A.? Explain your answers.

SUGGESTED ANSWER:

(1) a. If the testator who is a Filipino citizen executes his will in the Philippines, Philippine law will govern the formalities.
b. If said Filipino testator executes his will in another country, the law of the country where he maybe or Philippine law
will govern the formalities. (Article 815, Civil Code}

SUGGESTED ANSWER:

(2) a. If the testator is a foreigner residing in the Philippines and he executes his will in the Philippines, the law of the
country of which he is a citizen or Philippine law will govern the formalities.

b. If the testator is a foreigner and executes his will in a foreign country, the law of his place of residence or the law of
the country of which he is a citizen or the law of the place of execution, or Philippine law will govern the formalities
(Articles 17. 816. 817. Civil Code).

POSSIBLE ADDITIONAL ANSWERS:

a. In the case of a Filipino citizen, Philippine law shall govern substantive validity whether he executes his will in the
Philippines or in a foreign country.
b. In the case of a foreigner, his national law shall govern substantive validity whether he executes his will in the
Philippines or in a foreign country.
Wills; Holographic Wills; Insertions & Cancellations (1996)
Vanessa died on April 14, 1980, leaving behind a holographic will which is entirely written, dated and signed in her own
handwriting. However, it contains insertions and cancellations which are not authenticated by her signature. For this
reason, the probate of Vanessa's will was opposed by her relatives who stood to inherit by her intestacy. May Vanessa's
holographic will be probated? Explain.
SUGGESTED ANSWER:
Yes, the will as originally written may be probated. The insertions and alterations were void since they were not
authenticated by the full signature of Vanessa, under Art. 814, NCC. The original will, however, remains valid because
a holographic will is not invalidated by the unauthenticated insertions or alterations (Ajero v. CA, 236 SCRA 468].
ALTERNATIVE ANSWER:
It depends. As a rule, a holographic will is not adversely affected by Insertions or cancellations which were not
authenticated by the full signature of the testator (Ajero v. CA, 236 SCRA 468). However, when the insertion or
cancellation amounts to revocation of the will, Art.814 of the NCC does not apply but Art. 830. NCC. Art. 830 of the
NCC does not require the testator to authenticate his cancellation for the effectivity of a revocation effected through
such cancellation (Kalaw v. Relova, 132 SCRA 237). In the Kalaw case, the original holographic will designated only
one heir as the only substantial provision which was altered by substituting the original heir with another heir. Hence,
if the unauthenticated cancellation amounted to a revocation of the will, the will may not be probated because it had
already been revoked.
Wills; Holographic Wills; Witnesses (1994)
On his deathbed, Vicente was executing a will. In the room were Carissa, Carmela, Comelio and Atty. Cimpo, a notary
public. Suddenly, there was a street brawl which caught Comelio's attention, prompting him to look out the window.
Cornelio did not see Vicente sign a will. Is the will valid?
SUGGESTED ANSWERS:
a) Yes, The will is valid. The law does not require a witness to actually see the testator sign the will. It is sufficient if
the witness could have seen the act of signing had he chosen to do so by casting his eyes to the proper direction.
b) Yes, the will is valid. Applying the "test of position", although Comelio did not actually see Vicente sign the will,
Cornelio was in the proper position to see Vicente sign if Cornelio so wished.
Wills; Joint Wills (2000)
Manuel, a Filipino, and his American wife Eleanor, executed a Joint Will in Boston, Massachusetts when they were
residing in said city. The law of Massachusetts allows the execution of joint wills. Shortly thereafter, Eleanor died. Can
the said Will be probated in the Philippines for the settlement of her estate? (3%)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
SUGGESTED ANSWER:
Yes, the will may be probated in the Philippines insofar as the estate of Eleanor is concerned. While the Civil Code
prohibits the execution of Joint wills here and abroad, such prohibition applies only to Filipinos. Hence, the joint will
which is valid where executed is valid in the Philippines but only with respect to Eleanor. Under Article 819, it is void
with respect to Manuel whose joint will remains void in the Philippines despite being valid where executed.
ALTERNATIVE ANSWER:
The will cannot be probated in the Philippines, even though valid where executed, because it is prohibited under Article
818 of the Civil Code and declared void under Article 819, The prohibition should apply even to the American wife
because the Joint will is offensive to public policy. Moreover, it is a single juridical act which cannot be valid as to one
testator and void as to the other.
Wills; Probate; Intrinsic Validity (1990)
H died leaving a last will and testament wherein it is stated that he was legally married to W by whom he had two
legitimate children A and B. H devised to his said forced heirs the entire estate except the free portion which he gave
to X who was living with him at the time of his death.
In said will he explained that he had been estranged from his wife W for more than 20 years and he has been living
with X as man and wife since his separation from his legitimate family.
In the probate proceedings, X asked for the issuance of letters testamentary in accordance with the will wherein she is
named sole executor. This was opposed by W and her children.

(a) Should the will be admitted in said probate proceedings?

(b) Is the said devise to X valid?

(c) Was it proper for the trial court to consider the intrinsic validity of the provisions of said will? Explain your answers,

SUGGESTED ANSWER:

(a) Yes, the will may be probated if executed according to the formalities prescribed by law.

(b) The institution giving X the free portion is not valid, because the prohibitions under Art. 739 of the Civil Code on
donations also apply to testamentary dispositions (Article 1028, Civil Code), Among donations which are considered
void are those made between persons who were guilty of adultery or concubinage at the time of the donation.

(c) As a general rule, the will should be admitted in probate proceedings if all the necessary requirements for its extrinsic
validity have been met and the court should not consider the intrinsic validity of the provisions of said will. However,
the exception arises when the will in effect contains only one testamentary disposition. In effect, the only testamentary
disposition under the will is the giving of the free portion to X, since legitimes are provided by law. Hence, the trial court
may consider the intrinsic validity of the provisions of said will. (Nuguid v. Nuguid, etal.. No. L¬23445, June 23, 1966,
17 SCRA; Nepomuceno v. CA, L-62952,

9 October 1985. 139 SCRA 206).

Wills; Probate; Notarial and Holographic Wills (1997)
Johnny, with no known living relatives, executed a notarial will giving all his estate to his sweetheart. One day, he had
a serious altercation with his sweetheart. A few days later, he was introduced to a charming lady who later became a
dear friend. Soon after, he executed a holographic will expressly revoking the notarial will and so designating his new
friend as sole heir. One day when he was clearing up his desk, Johnny mistakenly burned, along with other papers,
the only copy of his holographic will. His business associate, Eduardo knew well the contents of the will which was
shown to him by Johnny the day it was executed. A few days after the burning incident, Johnny died. Both wills were
sought to be probated in two separate petitions. Will either or both petitions prosper?
SUGGESTED ANSWER:
The probate of the notarial will will prosper. The holographic will cannot be admitted to probate because a holographic
will can only be probated upon evidence of the will itself unless there is a photographic copy. But since the holographic
will was lost and there was no other copy, it cannot be probated and therefore the notarial will will be admitted to
probate because there is no revoking will.
ADDITIONAL ANSWERS:
1. In the case of Gan vs. Yap (104 Phil 509), the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen or read such will. The will itself must be
presented otherwise it shall produce no effect. The law regards the document itself as material proof of authenticity.
Moreover, in order that a will may be revoked by a subsequent will, it is necessary that the latter will be valid and
executed with the formalities required for the making of a will. The latter should possess all the requisites of a valid will
whether it be ordinary or a holographic will, and should be probated in order that the revocatory clause thereof may
produce effect. In the case at bar, since the holographic will itself cannot be presented, it cannot therefore be probated.
Since it cannot be probated, it cannot revoke the notarial will previously written by the decedent.
2. On the basis of the Rules of Court, Rule 76, Sec. 6, provides that no will shall be proved as a lost or destroyed
will unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. Hence, if we abide
strictly by the two-witness rule to prove a lost or destroyed will, the holographic will which Johnny allegedly mistakenly
burned, cannot be probated, since there is only one witness, Eduardo, who can be called to testify as to the existence
of the will. If the holographic will, which purportedly, revoked the earlier notarial will cannot be proved because of the
absence of the required witness, then the petition for the probate of the notarial will should prosper.

Wills; Revocation of Wills; Dependent Relative Revocation (2003)

Mr. Reyes executed a will completely valid as to form. A week later, however, he executed another will which expressly
revoked his first will, which he tore his first will to pieces. Upon the death of Mr. Reyes, his second will was presented
for probate by his heirs, but it was denied probate
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
due to formal defects. Assuming that a copy of the first will
excluded by a legitimate son of the decedent [Art. 887, New
is available, may it now be admitted to probate and given effect? Why?
SUGGESTED ANSWER:
Yes, the first will may be admitted to probate and given effect. When the testator tore first will, he was under the
mistaken belief that the second will was perfectly valid and he would not have destroyed the first will had he known
that the second will is not valid. The revocation by destruction therefore is dependent on the validity of the second will.
Since it turned out that the second will was invalid, the tearing of the first will did not produce the effect of revocation.
This is known as the doctrine of dependent relative revocation (Molo v. Molo, 90 Phil 37.)
ALTERNATIVE ANSWERS:
No, the first will cannot be admitted to probate. While it is true that the first will was successfully revoked by the second
will because the second will was later denied probate, the first will was, nevertheless, revoked when the testator
destroyed it after executing the second invalid will.
(Diaz v. De Leon, 43 Phil 413 [1922]).
Wills; Testamentary Disposition (2006)
Don died after executing a Last Will and Testament leaving his estate valued at P12 Million to his common-law wife
Roshelle. He is survived by his brother Ronie and his half-sister Michelle.
(1) Was Don's testamentary disposition of his estate in accordance with the law on succession? Whether you agree or
not, explain your answer. Explain.
SUGGESTED ANSWER: Yes, Don's testamentary disposition of his estate is in accordance with the law on succession.
Don has no compulsory heirs not having ascendants, descendants nor a spouse [Art. 887, New Civil Code]. Brothers
and sisters are not compulsory heirs. Thus, he can bequeath his entire estate to anyone who is not otherwise
incapacitated to inherit from him. A common-law wife is not incapacitated under the law, as Don is not married to
anyone.
(2) If Don failed to execute a will during his lifetime, as his lawyer, how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: After paying the legal obligations of the estate, I will give Ronie, as full-blood brother of Don,
2/3 of the net estate, twice the share of Michelle, the half-sister who shall receive 1/3. Roshelle will not receive anything
as she is not a legal heir [Art. 1006 New Civil Code].
(3) Assuming he died intestate survived by his brother Ronie, his half-sister Michelle, and his legitimate son Jayson,
how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson will be entitled to the entire P12 Million as the brother and sister will be excluded by
a legitimate son of the decedent. This follows the principle of proximity, where "the nearer excludes the farther."
(4) Assuming further he died intestate, survived by his father Juan, his brother Ronie, his half-sister Michelle, and his
legitimate son Jayson, how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson will still be entitled to the entire P12 Million as the father, brother and sister will be
Civil Code]. This follows the principle that the descendants exclude the ascendants from inheritance.
Wills; Testamentary Intent (1996)
Alfonso, a bachelor without any descendant or ascendant, wrote a last will and testament in which he devised." all the
properties of which I may be possessed at the time of my death" to his favorite brother Manuel. At the time he wrote
the will, he owned only one parcel of land. But by the time he died, he owned twenty parcels of land. His other brothers
and sisters insist that his will should pass only the parcel of land he owned at the time it was written, and did not cover
his properties acquired, which should be by intestate succession. Manuel claims otherwise. Who is correct? Explain.
SUGGESTED ANSWER:
Manuel is correct because under Art. 793, NCC, property acquired after the making of a will shall only pass thereby,
as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was
his intention. Since Alfonso's intention to devise all properties he owned at the time of his death expressly appears on
the will, then all the 20 parcels of land are included in the devise.